The government therefore moves to exercise its right to intervene in this case, under Fed. R.3 Civ. P. 5.1(c) and 28 U.S.C. § 2403(a), because the statutory sixty-day limitation in which to intervene has not expired and no final judgment pursuant to Fed. R. Civ. P. 58(a) has been entered. 2.

1(b) and 28 U.S.C. § 2403; grant the United States’ motion to intervene pursuant to Fed. R. Civ. P. 5.1(c) and 28 U.S.C. § 2403; and set a briefing schedule for the United States to file a substantive response to the constitutional USA’S MOTION FOR CERTIFICATION & LEAVE TO INTERVENE C 10-2994 JF 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 challenges to the statute raised by Defendants. In the accompanying proposed order, the United States requests that it be given twenty-one days following the entry of an order granting this motion to file a brief defending the constitutionality of 35 U.S.C. § 292.

Given that possibility, having the federal government as a party in this case, through the USPTO, seems more than prudent. Plaintiffs recognize that 28 U.S.C. § 2403 and Fed. R. Civ. P. 5.1 are discretionary and that the federal government need not intervene.

Kelly, 9 F.3d at 758. 98 Shizzle Pop, 2010 U.S. Dist. Lexis 86924, 8 99 RJN exhibit 6 100 28 U.S.C. § 2403(a) 101 Fed. R. Civ. P. 5.1(b) 102 Fed. R. Civ. P. 5.

1(b) provides, “[t]he court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned.” 28 U.S.C. § 2403 provides: “In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State[.]” WHEREFORE, Plaintiff requests this Court certify to Missouri’s Attorney General that the as- applied constitutionality of Mo. Rev. Stat. §§ 540.

at 3. On February 27, 2009, the Court certified to the Attorney General of the United States, pursuant to 28 U.S.C. § 2403(a), that the constitutionality of EPACT § 1503 had been called into question in the litigation. See Normand Decl., Exh.

That section provides that “in any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.” While this is not a case in which the duty to certify arises or the statute strictly applies because there is a State officer, the Secretary of State, who is already a party in the case, nevertheless the State of Ohio invokes its independent right to intervene as consistent with the spirit of 28 U.S.C. § 2403(b). The purpose of the statute is to guarantee that the State of Ohio has an opportunity to be heard when the constitutionality of a statute is at issue, and this case indisputably concerns the constitutionality of a statute very important to the General Assembly.

The remaining cases cited by the State are inapposite. Some address intervention in criminal cases under the entirely different standard set by 28 U.S.C. § 2403(b). See Maine v. Taylor, 477 U.S. 131 (1986); Chaffee v. Roger, 311 F. Supp. 2d 962 (D. Nev. 2004)2; Otani v. State Farm Fire & Cas.

Both Rule 5.1, Fed. R. Civ. Proc. (entitled “Constitutional Challenge to a Statute – Notice, Certification, and Intervention”) and 28 U.S.C. § 2403 (entitled “Intervention by United States or a State; constitutional question”) recognize that the state attorney general is entitled to defend a state statute which is challenged on constitutional grounds. The Attorney General’s Office has not advised the County Clerk that it will represent her or respond to this suit on her behalf or it has authority to represent her as a defendant in this action.

OO(14), claiming that the statute treats I Pursuant to a Stipulation of Dismissal and Intervention entered on May 23,2011, the Attorney General was voluntarily dismissed as a defendant and was permitted to intervene to defend the constitutionality of Penal Law § 400.00(14) pursuant to 28 U.S.C. § 2403(b), which provides that where the constitutionality of a state statute is drawn in question, the attorney general of the State may intervene for presentation of evidence, for argument on the question of constitutionality and shall have the rights of a party. Case 1:11-cv-02356-JGK Document 27 Filed 07/28/11 Page 14 of 48 - citizens of different parts of New York in a disparate fashion in violation of the Equal Protection Clause.